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ANALYSIS OF SEPTEMBER 15, 2009 CAV OPINION

[Posted September 15, 2009] The Court of Appeals today issues a sharply-divided en banc ruling in a criminal appeal. How sharply? A 6-5 ruling is as close as it gets. Today’s case is Bly v. Commonwealth.

Back in January, a divided panel of the court issued an unpublished decision by which it reversed Bly’s convictions for distribution of drugs, finding that the prosecution had failed to disclose Brady impeachment material. The material focused on the reliability of a police confidential informant named Hoyle who performed controlled buys, allegedly from Bly. According to Hoyle (sorry; it was a weak moment), Bly supplied him with an imitation controlled substance (a white powder that turned out not to be cocaine after all) and methamphetamine on two separate occasions. Bly denied any such contact, denying even that he had seen Bly on either of the two days alleged.

Normally that disparity of evidence is a question for the jury. But in this case, there was no jury, since this was a bench trial. The judge found Bly’s testimony to be persuasive, and convicted Bly. But before he could be sentenced, Bly discovered that the prosecution possessed information that would definitely call Hoyle’s credibility into question – primarily his accusation, in a similar case, of a drug sale by a guy who turned out to be in jail at the time, and who therefore could not have done what Hoyle accused him of doing. Bly accordingly filed a motion for a new trial, citing a Brady violation.

The trial court considered this, and had some concerns about the matter. In consideration of the Brady allegation (which the court took under advisement) and Bly’s whistle-clean criminal record, the court decided to place Bly on probation, to give him a chance to behave himself for a while.

Didn’t work. Bly didn’t stay in touch with his probation officer, and tested positive for marijuana. That brought the matter back before the court, which sentenced him to prison for the original drug sales. The Court of Appeals granted a writ to review the case.

Today, a bare majority of the court affirms the conviction, reaching the opposite result from the January panel decision. The court notes that a Brady analysis comprises three elements: The evidence must have been favorable to the defendant (impeachment evidence specifically qualifies as favorable); it must have been withheld by the prosecution (either by accident or on purpose); and the defendant must have been prejudiced.

The Commonwealth conceded the second element, and the majority assumes the first one without deciding the question. It moves straight to the third, and determines that the withholding of the material wasn’t prejudicial, because the trial court implicitly found, as a matter of fact, that it wasn’t. That is, since the trial court had denied the motion for a new trial, it necessarily found that the information would not have affected the outcome of the trial. The appellate court can only review that finding, like other factual determinations, using a “rational factfinder” approach, and it finds that the trial court reasonably could have concluded that the impeachment material wouldn’t have affected the case, especially since there was other testimony that established that Bly met Hoyle on one of the key dates.

Except a vocal minority of the court doesn’t see it that way. Judge Frank, writing for Judges Humphreys, Petty, Haley, and Alston, notes that the trial judge never made a specific finding that this evidence would have been sufficient even with the impeachment information. That distinguishes this case from an earlier one, relied upon by the majority, in which a trial judge had made an explicit finding that the extra information would have made no difference. (Remember, in this case, that key fact had to be implied by the appellate court.) And the dissent notes that the trial court specifically found the excluded information to be troubling, and never officially backed off that pronouncement.

As with most 6-5 decisions, this ruling begs for further appellate scrutiny, and it is eminently foreseeable to me that Bly will try for it, in the form of a petition for appeal in the Supreme Court. Stay tuned.